STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDDY L. MARTIN,

Petitioner,

vs.

AARON'S RENTAL PURCHASE,

Respondent.

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) Case No. 02-2244

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held on October 9, 2002, in Palatka, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Freddy L. Martin, pro se

2305 Husson Avenue Apartment I-65 Palatka, Florida 32177

For Respondent: Robert Haderlein, Esquire

Appearing as Qualified Representative for Aaron's Rental Purchase

Kilpatrick Stockton LLP 1100 Peachtree Street

Suite 2800

Atlanta, Georgia 30309-4530 STATEMENT OF THE ISSUE

Whether Respondent Employer is guilty of an unlawful employment practice by reason of racial discrimination.

PRELIMINARY STATEMENT

On or about November 1, 2000, Petitioner filed an Amended Charge of Discrimination dated October 28, 2000, with the Florida Commission on Human Relations (Commission), alleging racial discrimination in Respondent's September 16, 1999, "Constructive Discharge" of him.1 "Determination: No Cause" was entered on April 24, 2002, by the Commission. On or about

May 31, 2002, Petitioner filed a Petition for Relief, relating disparate treatment and a plot to terminate him by Respondent.

The cause was referred to the Division of Administrative Hearings on or about June 5, 2002.

On June 14, 2002, Respondent filed a Motion to Dismiss, based on alleged untimeliness of the Petition for Relief.

Petitioner did not timely respond to the Motion, pursuant to Rule 28-106.204, Florida Administrative Code.

Also on June 14, 2002, a Notice of Hearing on the merits was issued for August 15, 2002.

By a July 9, 2002, Order, Petitioner was required to show cause why the Petition for Relief should not be dismissed.

Petitioner filed a Response on July 24, 2002. A telephonic conference for oral argument was convened on August 6, 2002. By an Order entered August 9, 2002, the Motion to Dismiss was denied.2

By agreement of the parties, an Order was entered

August 14, 2002, continuing the final hearing until October 9, 2002.

The parties filed a Joint Pre-Hearing Stipulation, and the Final Hearing went forward as scheduled on October 9, 2002. At hearing, Robert Haderlein, an attorney admitted to practice outside Florida, was examined and declared a Qualified Representative for Respondent in these proceedings. Petitioner presented the oral testimony of La Tonya Fuqua and testified on his own behalf. He had no exhibits admitted in evidence.

Respondent presented the oral testimony of Greg Bellof and had three exhibits admitted in evidence. One Joint Exhibit was admitted in evidence.

A Transcript was filed on November 1, 2002. Respondent timely filed its Proposed Recommended Order. Petitioner did not meet the agreed time frame for filing proposals but timely moved for an additional four days in which to file his proposals. No response in opposition was filed, so by an Order entered December 9, 2002, Petitioner was granted four days plus five days for mailing in which to file his post-hearing proposals.

Petitioner did not file any post-hearing proposals by December 23, 2002, which would have been the due date.

FINDINGS OF FACT

1. The Amended Charge of Discrimination (Joint Exhibit A) was dated by Petitioner October 28, 2000. It was stamped-in as filed with the Commission on November 1, 2000. There is nothing of probative value in the record to show when the Charge of Discrimination, if any, was filed with the Commission.3

2. The Amended Charge of Discrimination alleges discrimination by Respondent due to Petitioner's race because:

   On or about September 16, 1999, [Petitioner] was constructively discharged (forced to resign) from my position with Respondent.

   During . . . employment I was denied raises and treated differently than similarly situated white employees.

   
   

   Therefore, the Amended Charge of Discrimination asserts racial discrimination by disparate treatment which allegedly occurred before September 16, 1999, and constructive discharge (termination) occurring on September 16, 1999.

3. The Commission entered its "Determination: No Cause" on April 24, 2002.

4. The Petition for Relief was filed with the Commission on May 31, 2002. The Petition describes alleged disparate treatment, but it makes no mention of any termination.

5. Petitioner is an African-American male.

   
   

6. Respondent conducts a furniture rental and rent-to-buy business and operates one of its stores in Palatka, Florida.

7. Petitioner was first hired in the Palatka store in May 1998, when that store was first opened. When he was hired, it was as a Customer Accounts Manager (CAM), at $7.25 per hour.

8. The function of a CAM is essentially that of a collection agent. As a CAM, Petitioner was responsible for collecting money from customers who had become delinquent in making their rental payments. This was accomplished by Petitioner's either telephoning or personally visiting the delinquent customers and working with them to get their payments current. Petitioner typically spent mornings making telephone calls and afternoons visiting delinquent account holders.

9. Prior to coming to work for Respondent in May 1998, Petitioner had no experience working in the furniture rental and sales business. However, after he was hired in May 1998, Petitioner received two weeks of training as a CAM. In addition, Petitioner worked with the Palatka store's General Manager in trying to bring the store's delinquent accounts current.

10. Respondent typically gives raises in June and December of each year based on employee performance and tenure with the company. In June 1998, after he had only worked for Respondent for one month, although he had not completed the usual six months required before being eligible for a raise, and despite

    his collection rate not meeting Respondent's standard (see infra.), Petitioner received a raise of 25 cents per hour.

11. In September 1998, Petitioner voluntarily left Respondent's employ to work for a local restaurant, because he had been offered more money to work there.

12. Petitioner admitted that nothing inappropriate happened while he worked for Respondent from May 1998 until September 1998.

13. In March 1999, Petitioner was recruited and rehired by Respondent to work as the sole CAM at its Palatka store. Prior to being rehired, Petitioner was interviewed by Respondent's District Manager, Greg Bellof, a Caucasian male. Petitioner was rehired at the same $7.50 per hour that he had been making when he voluntarily quit in September 1998.

14. One of the ways in which Respondent tracks the respective performance of its stores is to measure each store's delinquent account collections rate. In 1999, including the time that Petitioner worked there, the Palatka store had the worst collections rate of the six stores in Mr. Bellof's district. During the entire time that Petitioner worked as a CAM in that store, including both his 1998 and 1999 employment periods, the Palatka store never met Respondent's standard for collections.

15. As of the date of hearing, the Palatka store was doing well in terms of collections and had been meeting or exceeding Respondent's standard.

16. Petitioner contends that from his March 1999 rehire until July 1999, everything relating to his employment went fine.

17. Three months post re-hire, Petitioner did not get a June 1999 raise because of a combination of his not having worked for Respondent a full six months and the below-standard collection rate. This was different than what had occurred in his previous employment with Respondent (see Finding of Fact 10 supra.), but it was not shown that any similarly situated employee was treated differently than Petitioner in June 1999.

18. In July 1999, Petitioner overheard his store's General Manager's end of a telephone conversation with an unidentified individual. Petitioner contends that the Caucasian General Manager and this individual were discussing replacing Petitioner as the CAM. Petitioner assumed that the person on the other end of the phone was another manager, but he admitted that he did not know whether the individual with whom his General Manager was speaking was an employee of Respondent. Petitioner could not hear anything that the other individual was saying. When Petitioner confronted his General Manager about this telephone conversation, the General Manager denied that he had been

    discussing replacing Petitioner as the CAM during that telephone conversation. The General Manager told Petitioner that, "You did not hear what you thought you heard."4

19. Respondent did not, in fact, replace Petitioner until after he voluntarily quit the following September. (See Finding of Fact 35).

20. The District Manager, Mr. Bellof, testified credibly that he never had any plans to replace Petitioner as the CAM.

21. Petitioner contended that beginning in August 1999, Mr. Bellof, who typically spent only one or two days per week at the Palatka store, began spending more time standing over Petitioner as Petitioner made telephone calls, and frequently asked Petitioner what he was doing.

22. Mr. Bellof admitted that when one of his stores is having trouble with accounts, he spends more time in the CAM's office, observing the CAM performing his or her job, so that he can look for ways to help the CAM improve the store's collections rate. In particular, Mr. Bellof listens to telephone calls the CAM is having with delinquent customers, to find out how the CAM is handling certain situations. In addition, when one of his stores has not met Respondent's collections rate standard, Mr. Bellof accompanies the CAM on visits to delinquent customers, in an effort to help identify areas for improvement.

23. By observation and descriptive testimony, it is found that Mr. Bellof is what might be described in the common jargon as "a go-getter" and "wunderkind" in Respondent's rent-to-own industry. He is very intense.

24. Despite Mr. Bellof's emphasizing his observation of Petitioner over his inquiry and correction of Petitioner, it is clear to the undersigned that there may have been some degree of micro-management involved in their relationship. However, Petitioner never complained to Mr. Bellof that he felt

    Mr. Bellof was hounding him or giving him a hard time, and Petitioner's witness, La Tonya Fuqua, testified that she did not notice any tension between Petitioner and Mr. Bellof. Ms. Fuqua was the only other African-American, besides Petitioner, working in the Palatka store.

25. Petitioner contended that Mr. Bellof once referred to him as a "road dog," in the presence of other superiors. However, Petitioner admitted that as the CAM, he was required to, and did, spend quite a bit of time on the road for the purpose of visiting customers with delinquent accounts. Petitioner testified that he does not believe that the phrase "road dog" has any racial connotations. Instead, Petitioner simply felt that it was not proper language to be used to someone of his rank in Respondent's managerial hierarchy.

    Petitioner spoke to Mr. Bellof about the impropriety of his use of this term, and Mr. Bellof never used the term again.

26. Petitioner demonstrated that Mr. Bellof spent a lot of time watching, listening, and urging Petitioner with regard to his duties as a CAM and that he sometimes rode with Petitioner on his calls, but Petitioner was the only CAM in the Palatka store, and he did not demonstrate that Mr. Bellof treated him any differently than any other CAM of any race.

27. Petitioner simultaneously complained that Mr. Bellof and other managers did not adequately train him to do his job better as a CAM, train him as a CAM beyond his initial two weeks' training, or train him as a Sales Manager so he could move up to the General Manager position.

28. Petitioner complained that, while he worked for Respondent in 1999, Respondent twice hired Caucasian Customer Accounts Advisors (CAAs), Randy Nobenger and Derrick Christian, at a pay rate of 20 to 25 cents more per hour than Petitioner was making. CAAs generally assist the CAM with collections, so Petitioner felt those CAAs hired in his store should have been paid less than he was, especially since he was required to train them.

29. It is not unusual for Respondent to hire a CAA at a pay rate higher than that being paid to the CAM at the same store. On at least two other occasions, Mr. Bellof has hired

    CAAs for other stores at a rate of pay higher then the same store's CAM. On one of those occasions, the CAA was African- American and the CAM was Caucasian.

30. A CAA may be hired at a rate above the rate paid the CAM for a number of reasons. During the interview process, desirable candidates are typically asked how much s/he would like to be paid. If the desired CAA candidate is making a higher rate of pay at his or her existing job or for any reason will not accept less-than-a certain amount in order to meet his or her ongoing financial obligations, then that rate of pay is offered by Respondent. If the CAA has more experience than the CAM, a competitive rate of pay is offered. In some instances, as was the case with both Mr. Nobenger and Mr. Christian, Respondent was unable to secure a desired CAA candidate at a rate of pay below the CAM's rate. Petitioner acknowledged that it was understandable that Respondent paid CAA Nobenger more than a CAM because Nobenger had 15 years of previous managerial experience. Petitioner did not feel that a higher pay rate was reasonable with regard to CAA Christian.

31. Petitioner contended that he should not have been required to train people who were paid more than he was; that he could not have been such a poor employee if he were required to train other employees to do his job; that the requirement that he train Messrs. Nobenger and Christian detracted from his

    opportunity to do his job as CAM; and that training the CAAs was part of a management plot to have him train these employees and then fire him.

32. However, Petitioner conceded that he worked directly with his store's General Manager, that the General Manager had other duties besides training and that Petitioner was the only employee, besides the General Manager, available in the Palatka store to train CAAs.

33. Petitioner further contended that he was denied opportunities for advancement through training, which training was provided to CAA Christian. However, Petitioner's request for training appears to have been the equivalent of "Show me. Show me how to do a better job as CAM," which was fairly vague, and Mr. Bellof believed his involvement with Petitioner constituted training in the CAM position. Petitioner testified that Mr. Christian was being trained for a General Manager slot "within 4 to 6 months" of Mr. Christian's being hired. Petitioner only worked for Respondent during four months in 1998 and five months in 1999.

34. Mr. Christian was trained in collections as a CAA by Petitioner and trained by someone else as a Sales Manager. He wound up being offered a General Manager position. Whether

    Mr. Christian was offered a General Managership before or after Petitioner left Respondent's employ in September 1999, is

    unclear, but since the Palatka store still had its General Manager when Petitioner quit in 1999, Mr. Christian clearly was not promoted in that store while Petitioner was still employed by Respondent.

35. In September 1999, Petitioner was contacted by one of his former employers, Wal-Mart, which asked if he wanted to return to his previous position as a Loss Control Manager at

    $8.00 per hour, plus full health benefits. Petitioner accepted the Wal-Mart job and resigned his position with Respondent.

    There is no evidence that Petitioner was looking for another job in order to leave Respondent's employment before Wal-Mart initiated its offer to him.

36. Respondent replaced Petitioner with a new employee (race not of record) after Petitioner resigned. Respondent did not promote one of the Caucasian CAAs into Petitioner's position of CAM.

37. Every week during his employment with Respondent, Petitioner signed a timesheet verifying the number of hours that he worked. These timesheets also contained a statement Petitioner signed certifying that if he felt he had been discriminated against or harassed, he had telephoned Respondent's toll free number listed on the timesheet and reported the discrimination or harassment. During his employment with Respondent, Petitioner signed this certification

    on his timesheets. He also never called the toll free number and never complained about being harassed or discriminated

    against.

    
    

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, if at all, pursuant to Chapter 760, Part I, and Section 120.57(1), Florida Statutes.

39. Section 760.11(1), Florida Statutes, provides that a claim is barred unless a Charge of Discrimination is filed with the Commission within 365 days of the last discriminatory act complained-of. If one counts from the September 16, 1999, "termination," alleged in the Amended Charge, then Petitioner should have filed his Charge on or before September 17, 2000. Since September 17, 2000, fell on a Sunday, Petitioner's Charge of Discrimination had to be filed with the Commission by Monday, September 18, 2000. Section 760.11(1), Florida Statutes, is a genuine statute of limitation based upon filing date, not a statute of limitation based upon mailing date or a statute of non-claim. It allows no period for delivery by mail, but even if some rule could permit an additional 3-5 days for mailing, which the statute does not, then Petitioner's filing on

    November 1, 2000, was still grossly untimely.

40. While one might logically assume that an Amended Charge of Discrimination amends a previously filed Charge of Discrimination, there is nothing in the record before the Division, even under the relaxed standard of Section 120.57(1)(c), Florida Statutes, which proves when the original Charge, if there was an original Charge, was filed with the Commission. Since Petitioner has the affirmative duty to establish jurisdiction and has failed to do so, this case legitimately could be dismissed for lack of jurisdiction.5

41. However, in an abundance of caution, and because Petitioner is somewhat at a disadvantage as to the issue of jurisdiction due to the Commission's failure to advise the Division as part of its referral package, whether there ever was an initial Charge, Petitioner's allegations and evidence have been considered. The fact that the Petition was apparently directed only to disparate treatment predating September 16, 1999, and not to the alleged "termination" on that date is not controlling. See Mitchell v. White Oak Plantation, DOAH Case No. 02-2746 (Recommended Order December 11, 2002.)

42. In Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), the Florida Supreme Court analyzed the types of claims under the Florida Civil Rights Act as follows:

    The United States Supreme Court set forth in procedure essential for establishing such claims in McDonnell Douglas Corp., v. Green,

    41 U.S. 792 (3 S.Ct. 1817, 36 L.Ed. 2d 668

    (1973), which was then revisited in detail in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67

    L.Ed. 2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies the burden, the employee must then persuade the fact finder that the proffered reasons for the employment decision was pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated by the decision, or indirectly by showing that the proffered reasons for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his other ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. (Citations omitted.)

    
    

43. Under the McDonald Douglas approach, a Petitioner must first establish a prima facie case of racial discrimination by showing that he occupied a job similar to that of higher paid

    individuals of another race. Meeds v. Computer Assoc. Intern.,

    
    

    15 F.3d 1013 (11th Cir. 1994). In this case, Petitioner has not established a prima facie case, because there is no evidence in the record that another CAM was paid a higher wage rate than Petitioner.

44. Assuming, arguendo, but not ruling, that Petitioner can rely upon the fact that Caucasians Nobenger and Christian were paid a higher wage rate in the CAA positions than Petitioner, an African-American, was paid in the CAM position, in order to establish Petitioner's prima facie case, Petitioner's ultimate claim still fails.

45. Once a prima facie case is established, the employer must articulate a legitimate, non-discriminatory reason for the pay disparity. Meeks, supra. This burden is "exceedingly light" and requires only that the employer proffer a non-racial reason for the pay disparity. Id. In this case, Respondent articulated that it pays a desired candidate the least amount the candidate will accept to fill the position and generally has to pay more for persons with relevant experience than those, like Petitioner, who have none. Mr. Nobenger clearly had more experience than Petitioner. Although Mr. Christian had no experience in the furniture rent-to-sell business, Petitioner did not overcome Respondent's evidence that it had to pay a

    competitive rate (the lowest rate of pay Mr. Christian would accept) in order to hire him.

46. Once an employer has advanced a legitimate non- discriminatory reason, Petitioner must establish by a preponderance of the evidence that a discriminatory reason more likely than not motivated the employer's decision. Id.

    Petitioner has made no such showing. Petitioner presented no evidence that his race had anything to do with the wage rates. To the contrary, Mr. Bellof described other stores where Respondent paid CAAs more than CAMs, including a situation in which an African-American CAA was paid more than a Caucasian CAM.

47. Petitioner also claimed that he was subjected to a hostile work environment because of his race. Title VII and the Florida Civil Rights Act were not passed to be a "civility code" governing the workplace. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S. Ct. 998 (1998). In order to establish a hostile work environment, a Petitioner must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L.Ed. 2d 295 (1993). A case-by- case determination is required. Factors to consider are the

    frequency and severity of the conduct, whether it is physically threatening or humiliating, and to what degree it reasonably interferes with the Petitioner's job performance. Allen v.

    Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997).

    
    

48. Herein, Petitioner has not demonstrated a pervasive series of comments or conduct. Mr. Bellof's supervision may have been intense, or even unnerving, but it was not harassing. Something more than Petitioner's own internalized perception is necessary to prove harassment. It is very telling that La Tonya Fuqua, Petitioner's witness, testified that she did not notice any tension between Petitioner and his alleged harasser,

    Mr. Bellof. Mr. Bellof's single comment concerning "road dog," which even Petitioner admits was not a racially motivated term, represents a single incident, not a pervasively hostile work environment, and the comment was never repeated after Petitioner complained to Mr. Bellof about his use of it. It is significant that Petitioner also never complained about any other alleged harassment, despite being reminded each week on his timesheets of the opportunity and methodology for complaint. Therefore, Mr. Bellof's alleged treatment of Petitioner was not so severe and pervasive as to alter the terms and conditions of Petitioner's employment.

49. One element of the claim of hostile work environment, based on racial harassment, is proof that the harassment

    complained-of was based on race. Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L.Ed. 2d 49 (1986).

    There is no evidence that race had anything to do with Mr. Bellof's treatment of Petitioner.

50. Finally, the United States Supreme Court has held that an employer may avoid liability for harassment by proving that

    (1) it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher

    v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L.Ed. 2d 295 (1998). The lack of repetition of the "road dog," comment and Petitioner's failure to notify anyone that he felt he was harassed, fall in this category.

51. Petitioner was never constructively discharged from his employment. In order to prove a constructive discharge, Petitioner must show that Respondent's discriminatory conduct, based on Petitioner's race, resulted in working conditions that were so unpleasant and intolerable that a reasonable person in his shoes would have had no choice but to resign. Hill v. Winn Dixie Stores, Inc., 934 F.2d 1518 (11th Cir. 1991). Even so, a constructive discharge will generally not be found if the employer is not given sufficient time to remedy the hostile work situation. Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752

    (11th Cir. 1996). For all the foregoing reasons, Petitioner has not proven different treatment, a nexus between the treatment and Petitioner's race, or timely complaint to management.

52. Petitioner was not even looking for alternative employment in 1999. He just took a better-paying job with better health benefits when it came along. Again, Petitioner's burden has not been met. Each time Petitioner left Respondent's employment (once in September 1998, and a second time in September 1999), he voluntarily resigned to take other employment.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission enter a Final Order dismissing the Petition for Relief, the Amended Charge of Discrimination, and if applicable, the Charge of Discrimination thereto appertaining.

DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2002.

ENDNOTES

1/ See Conclusions of Law on the untimeliness vel non of the Charge/Amended Charge and its effect on jurisdiction.

2/ The Petition for Relief was mailed to the Commission. It was stamped-in there on May 31, 2002, which would be the thirty- seventh day after the April 24, 2002, "Determination: No Cause." The interpretation placed on Section 760.11(7), Florida Statutes, when read in conjunction with Rule 60Y-4.007(1) and (2), Florida Administrative Code, set forth in the Commission's Remand Order in Dubose v. Columbia North Florida Regional Medical Center, FCHR Case No. 97-1298 (FCHR Remand Order of February 8, 2001), suggests that when a Petition for Relief is "filed by mail," it is considered timely if it is stamped-in by the Commission within 38 days of the "Determination: No Cause." In this case, that would mean Petitioner could have timely filed his Petition as late as Monday, June 3, 2002, since the thirty- eighth day, June 1, 2002, fell on a Sunday.

3/ Respondent's Qualified Representative stated that he had been "told" over the phone by an unnamed and unknown person associated with the Commission that the Charge of Discrimination had been filed on September 14 or 16, 2000, but that even a request under the Freedom of Information Act had failed to elicit a copy of the Charge from the Commission (TR-23). His statement is not direct evidence or even hearsay evidence upon

which a finding of fact may be made. See Section 120.57(1)(a), Florida Statutes.

4/ Ms. Fuqua, who also has a lawsuit pending against this Respondent, testified that the General Manager told her that he had been told that "they" intended to replace Petitioner. (TR 64-65). Petitioner testified that the General Manager told him, months later, after the General Manager himself was terminated, that Respondent was out to make Ms. Fuqua quit. This is all hearsay upon which Findings of Fact may not be made. See Section 120.57(1)(c), Florida Statutes. Further, it is lacking in credibility for obvious reasons, and shows no nexus to race as a motivating factor for management decisions never actually carried out.

5/ Respondent asserts that under Section 760.11(1), Florida Statutes, since the Amended Charge was dated October 28, 2000, and filed with the Commission on November 1, 2000, Petitioner has late-filed for any allegedly discriminatory employment practice pre-dating September 16, 1999, (or September 18, 1999, or November 1, 1999, and therefore evidence of all events prior to that date(s) should have been excluded as time-barred. (TR-

23) Due to the Conclusions reached herein, it is not necessary to sort out or address this theory.

COPIES FURNISHED:

Robert Haderlein, Esquire Kilpatrick Stockton LLP 1100 Peachtree Street

Suite 2800

Atlanta, Georgia 30309-4530

Freddy L. Martin 2305 Husson Avenue Apartment I-65

Palatka, Florida 32177

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 02-002244

Orders for Case No: 02-002244